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Summary of NLRB Decisions for Week of April 10 - 14, 2017

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew  (20-CA-154749, et al.; 365 NLRB No. 53)  Honolulu, HI, April 10, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated: (1) Sections 8(a)(3) and (1) by issuing two employees written warnings for engaging in protected activity; and (2) Section 8(a)(1) by (a) through its Vice President of Operations, ordering employees to cease engaging in protected activity, threatening employees with discharge for engaging in protected activity, and asking employees to disclose their feelings about the union; and (b) threatening employees with unspecified reprisals for handbilling in nonwork areas.  In a footnote, Acting Chairman Miscimarra concurred that the Respondent violated Section 8(a)(1) when the Vice President of Operations invited employees to apologize to him for their union activity, but found that the General Counsel had not sustained his burden of affirmatively showing that other statements made to employees violated the Act.

Charges filed by UNITE HERE! Local 5.  Administrative Law Judge Mara-Louise Anzalone issued her decision on May 31, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Synergy One Locating Services, LLC  (28-CA-137972, et al.; 365 NLRB No. 58)  Phoenix, AZ, April 11, 2017.

The Board granted the General Counsel’s motion for default judgment because the Respondents failed to file an answer to the General Counsel’s compliance specification.  The Board ordered the Respondents to pay the backpay owed to the discriminatees pursuant to the Formal Settlement Stipulation previously approved by the Board and enforced by the Ninth Circuit Court of Appeals.  The Board also found Respondent Gaskins personally liable, jointly and severally, with Synergy One Locating, LLC, as alleged in the compliance specification.

Charges filed by International Brotherhood of Electrical Workers, Local 387, AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Aqua-Aston Hospitality, LLC f/k/a Aston Hotels and Resorts, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew  (20-CA-145717, et al.; 365 NLRB No. 44)  Honolulu, HI, April 11, 2017.

The Board granted the General Counsel’s motion for default judgment, finding that the motion was timely filed because the General Counsel notified the Respondent that it was in default of the settlement agreement within the six-month limitation period.  The settlement agreement stated that “no default shall be asserted” after six months from the Regional Director’s approval of the agreement.  The Board found that the term “assert” was clearly linked to the provision of notice.

Charges filed by UNITE HERE! Local 5.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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M.D. Miller Trucking & Topsoil, Inc.  (13-CA-104166; 365 NLRB No. 57)  Sherwood, IL, April 12, 2017.

In this compliance decision, the Board adopted the Administrative Law Judge’s findings that the Employer did not satisfy its burden of showing that the discriminatee failed to mitigate his damages, and that the discriminatee engaged in reasonable job search efforts during the backpay period.  The Board ordered the Employer to pay the discriminatee the amounts set forth in the compliance specification.

Charge filed by General Teamsters Local Union No. 179, affiliated with the International Brotherhood of Teamsters.  Administrative Law Judge John T. Giannopoulos issued his decision on November 4, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Keystone Automotive Industries, Inc.  (32-RC-137319; 365 NLRB No. 60)  Stockton and Union City, CA, April 13, 2017.

The Board unanimously adopted the Hearing Officer’s findings that the Employer engaged in objectionable election conduct by interrogating employees regarding their sentiments for the Union and by telling employees that perks, leniency, and its Core program, through which employees were able to earn money over and above their regular wages, would go away if the Union were to infiltrate the company. The Board unanimously agreed that the Employer’s objectionable conduct reached a determinative number of voters, and directed a second election.

A Board majority (Members Pearce and McFerran) further adopted the Hearing Officer’s finding that the Employer engaged in objectionable conduct by making promises of better pay if employees voted against the Union.  Acting Chairman Miscimarra, dissenting in part, would find that the Employer’s statements regarding wages were not objectionable because the Employer made clear that it was not promising a wage increase.  In his view, the Employer told employees that wages, along with other mandatory subjects, would be subject to collective bargaining if the Union won the election, and that the Employer would continue to evaluate potential wage increases after the election in exactly the same manner regardless of whether the Union won or lost.

Petitioner – International Brotherhood of Teamsters, Local 853.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Dish Network LLC  (27-CA-158916; 365 NLRB No. 47)  Englewood, CO, April 13, 2017.

On a stipulated record, applying U-Haul Co. of California, 347 NLRB 375 (2006), the Board (Members Pearce and McFerran; Acting Chairman Miscimarra, concurring) found that the Respondent violated Section 8(a)(1) by maintaining an Arbitration Agreement (Agreement) that employees would reasonably construe to prohibit accessing the Board’s processes.  Moreover, the Board found that the Agreement’s confidentiality provision independently violates Section 8(a)(1) because it prohibits employees from discussing certain terms and conditions of employment—here, from discussing “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards.”  However, because the Agreement did not restrict class or collective actions in any forum, the Board found that it was not unlawful under D. R. Horton, 357 NLRB 2277 (2012) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Finally, the Board found the Respondent violated Section 8(a)(1) when it instructed an employee not to discuss his discipline with his coworkers.

In concurring with these findings, Acting Chairman Miscimarra noted that the Agreement does not in any way qualify the requirement that all charges be resolved in arbitration; that the Agreement’s confidentiality provision would prevent employees from discussing arbitration proceedings; and that the Respondent’s instruction to an employee not to discuss his suspension related to discipline imposed on him (and circumscribed employees’ ability to discuss treatment by their employer) rather than to matters discussed in an investigative meeting.  

Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Local 340, New York New Jersey Regional Joint Board (Brooks Brothers, a Division of Retail Brand Alliance, Inc.)  (02-CB-069460; 365 NLRB No. 61)  New York, NY, April 13, 2017.

The Board granted the General Counsel’s petition for summary judgment, finding that there were no genuine issues of material fact as to the allegations of the complaint.  The Board concluded that, as a matter of law, the Respondent violated Section 8(b)(1)(A), (2), and (3) by continuing to seek judicial enforcement of an arbitration award that conflicts with the Board’s unit clarification determination in Brooks Brothers, Case 02-UC-062745 (September 21, 2015).  The arbitration award required the Employer, Brooks Brothers, to recognize the Union and apply the collective-bargaining agreement, which includes a union-security clause, to employees at its 1180 Madison Avenue store, despite the Board’s finding in the unit clarification proceeding that those employees were not an accretion to the unit represented by the Union.  The Board found that, by maintaining the lawsuit seeking enforcement of the arbitration award after the Board’s denial of review in the UC case holding that the 1180 Madison store was not an accretion to the existing multi-store unit, and in the absence of the required showing of majority status, the Union has, in effect, sought a court order requiring the Employer to apply the collective-bargaining agreement, which includes a union-security clause, to employees outside of the bargaining unit.  The Board ordered the Respondent to withdraw, or, if necessary, otherwise seek dismissal of the lawsuit, and to reimburse the Employer for all reasonable expenses and legal fees, with interest, that the Employer incurred in defending against the lawsuit after the issuance of the Board’s unit clarification order.

Charge filed by Brooks Brothers, a Division of Retail Brand Alliance, Inc.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Duquesne University of the Holy Spirit  (06-RC-080933)  Pittsburgh, PA, April 10, 2017.   The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Recommendation to Overrule Objections to Election and Issue Certification solely with regard to the Regional Director’s inclusion of the Department of Theology adjunct faculty in a unit of part-time adjunct faculty.  Applying Seattle University, 364 NLRB No. 84 (2016) and Saint Xavier University, 364 NLRB No. 85 (2016), the majority found that the University holds out the faculty in the Department of Theology as performing a specific role in maintaining the University’s religious educational environment.  Accordingly, the Petitioner should not be certified as the bargaining representative unless the Regional Director determines that it achieved a majority of countable ballots without those of the excluded Department of Theology employees; if the Regional Director so determines, the certification should be amended to exclude those employees.  The majority denied the Request for Review in all other respects and remanded the case to the Regional Director.  Acting Chairman Miscimarra, relying on his dissents in Seattle University, Saint Xavier University, and Pacific Lutheran University, 361 NLRB No. 157 (2014), would have granted the Employer’s Request for Review in its entirety because he believes there is a substantial issue regarding whether the Board lacks jurisdiction over the entire petitioned-for unit.  Petitioner – United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Caterpillar, Inc.  (05-RD-184405)  York, PA, April 14, 2017.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review.  Petitioner – an individual.  Union – International Union, United Automobile, Aerospace and Agricultural Implement Workers, AFL-CIO, and its Local 1872.  Acting Chairman Miscimarra and Members Pearce and McFerran participated. 

C Cases

C.W. Wright Construction Company, LLC  (06-CA-186469)  Tunnelton, WV, April 10, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by International Brotherhood of Electrical Workers, Local Union 126.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Foley Electric, Inc.  (20-CA-177144, 20-CA-186770, and 20-CA-189970)  Redwood City, CA, April 11, 2017.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by International Brotherhood of Electrical Workers, Local Union 332, AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Ohio V.I., Inc. d/b/a Little Caesars  (08-CA-181629 and 08-CA-181658)  Lorain, Ohio, April 11, 2017.  The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by individuals.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Hilton Worldwide, Inc. d/b/a Hilton Phoenix Suites  (28-CA-171391, et al.)  Phoenix, AZ, April 11, 2017.  The Board approved a formal settlement stipulation between the Respondents, the Charging Party, and the General Counsel, and specified actions the Respondents must take to comply with the Act.  Charges filed by Unite Here Local 631.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

National Association of Letter Carriers, AFL-CIO (United States Postal Service)  (20-CB-183754, et al.)  Marysville and Napa, CA, April 12, 2017.  The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Acting Chairman Miscimarra agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel described, in reasonably concrete terms, why, based on material facts that are genuinely in dispute, a hearing is required.  Charges filed by individuals.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Pavestone Company  (01-CA-186364)  Middleboro, MA, April 12, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by International Brotherhood of Teamsters, Local 653.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Midwest Terminals of Toledo International, Inc.  (08-CA-152052 and 08-CA-158778)  Toledo, OH, April 12, 2017.  The Board denied the Employer’s petition to revoke investigative subpoenas duces tecum and ad testificandum.  The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoenas.  Charges filed by International Longshoremen’s Association, Local 1982, and by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

International Union of Operating Engineers, Local 181, AFL-CIO (Marathon Petroleum Company)  (09-CB-155016 and 09-CB-159411)  Catlettsburg, KY, April 14, 2017.  The Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s order approving the Respondent’s proposed informal settlement agreement/consent order over the objections of the General Counsel and the Charging Parties, and denied the appeal on the merits and approved the consent order.  The Board applied its holding in United States Postal Service, 364 NLRB No. 116 (2016), which clarified that the appropriate standard for evaluating a judge’s order approving and incorporating the settlement terms proposed by a respondent, over the objections of the General Counsel and the charging party, is “whether the order provides a full remedy for all of the violations alleged in the complaint.”  Under this standard, the Board found that the consent order provided a full remedy, interpreting the consent order’s requirement that the Respondent “honor the request of any job referral applicant to review the out-of-work list to determine their positions for referral on the out-of-work list” as encompassing the specific remedy of granting each Charging Party the right to review the applicable out-of-work list that was in place when each made his request.  Acting Chairman Miscimarra agreed with this interpretation and joined his colleagues both in granting the permission to appeal and in denying the appeal on the merits.  However, he wrote separately to explain his disagreement with his colleagues’ evaluation of this agreement under United States Postal Service, stating that he would continue to apply Independent Stave Co., 287 NLRB 740 (1987), in evaluating consent settlement agreements.  Charges filed by individuals.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Nexstar Broadcasting Group, Inc. d/b/a WETM-TV, Board Case No. 03-CA-125618 (reported at 363 NLRB No. 32) (2d Cir. decided April 12, 2017)

In an unpublished summary order, the Court enforced the Board’s order issued against this operator of television station WETM in Elmira, New York, whose employees engaged in television broadcasting and web streaming are represented by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO.  The Board (then-Chairman Pearce and then-Members Miscimarra and Hirozawa) found that the Employer violated Section 8(a)(5) and (1) by unilaterally removing the positions of assignment editor and chief videographer from the collective-bargaining unit and unilaterally removing the unit work of those positions.  On review, the Court found the Employer’s arguments unpersuasive, and held that the Board’s factual findings are supported by substantial evidence, its legal determinations have a reasonable basis in law, and its remedial order effectuates the purposes of the Act by restoring the status quo ante.

The Court’s decision is here.

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Administrative Law Judge Decisions

Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew  (20-CA-167132, et al.; JD(SF)-14-17)  Honolulu, HI.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 12, 2017.  Charges filed by Unite Here! Local 5.

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